Editors --- "Eligibility for Economic Strategy Security payment" [2009] SocSecRpr 39; (2009) 11(4) Social Security Reporter, Article 2

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Eligibility for Economic Strategy Security payment

SECRETARY TO THE DFHCSIA and DE WAAL

(2009/635)

Decided: 26th August 2009 by D.G. Jarvis

The facts

De Waal was qualified to receive disability support pension (DSP), however his payments fluctuated due to income. For the periods ending 27 October and 10 November 2008 his entitlement was $0.

Centrelink rejected payment of the Economic Strategy Security payment (ESS) as de Waal was found not to be receiving DSP ‘in respect of’ 14 October 2008. The decision was reviewed and set aside by the SSAT.

The law

Section 900 of the Social Security Act 1991 (the Act) sets out the qualification criteria for ESS:

‘(1) A person is qualified for an economic security strategy payment if subsection (2), (3) or (4) applies to the person.

Receipt of certain payments

(2) This subsection applies to a person if:

(a) the person was receiving one of the following payments in respect of 14 October 2008:

...

(ii) a disability support pension;

...and

(b) except in the case of carer allowance, the person was receiving that payment because of a claim the person made on or before 14 October 2008.

Note: For receive see subsections 23(2) and (4).’

Also relevant is the definition of ‘receive’.

(2) For the purposes of this Act (other than section 735), a person is taken to be receiving a payment under this Act from the earliest day on which the payment is payable to the person even if the first installment of the payment is not paid until a later day.

(4) For the purposes of this Act, a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person even if the last instalment of the payment is not paid until a later day.’

‘38B(1) The object of this section is to treat a person in certain circumstances as having received an income support payment in respect of a continuous period even though the person did not actually receive such a payment during a part or parts of the period.

(3) Subject to subsection (4), in determining the continuous period in respect of which a person has received income support payments, any period of not longer than 6 weeks in respect of which the person did not receive an income support payment is taken to have been a period in respect of which the person received such a payment.

Section 38B extends the deemed continuous period of receipt of income support payments notwithstanding a hiatus of up to 13 weeks, where (as was the position of the Waal) payments have been received for at least 12 months.

Submissions

The Department argued that de Waal was not receiving DSP in respect of 14 October 2009. His payment had been reduced to $0 and therefore DSP was not payable.

It was argued on de Waal’s behalf that:

• Payment does not refer to an instalment, but the payment of DSP.

• That DSP can be ‘received even though it is not payable for a particular period’.

• Section 23 envisages a single ‘payment’ of DSP which is then received by way of instalments. As de Waal was granted DSP in 2006, he was taken to be receiving that payment until the last instalment was payable and this had not yet occurred.

• In amending other legislation which provides for family assistance, the Social Security & Other Legislation Amendment (Economic Security Strategy) Act 2008 made entitlement to the ESS payment, in the case of a person receiving youth allowance or an ABSTUDY scheme allowance, dependent on payments of an ‘instalment in respect of a period that included 14 October 2008’. It was submitted that this difference in language suggested that the amendments were intended to have a different effect than the amendments to the Act.

• Pursuant to s. 38B of the Act, de Waal was deemed to have received DSP for a continuous period, irrespective of the period when payment was not made.

Consideration

The Tribunal first considered the meaning of ‘receiving’. The Tribunal noted that ss.23(2) and (4) are deeming provisions and recognised that payments are made by instalments. Therefore based on the ordinary meaning of s.900 and ss.23(2) and (4), de Waal received payment of DSP until 13 October when, for two instalment periods his rate was reduced to nil. Applying s.98 (which provides that DSP is not payable if the DSP rate would be nil) meant that DSP was not payable for this time and applying ss.23(2) and (4), consequently he was not ‘receiving’ DSP during those periods. Therefore he did not ‘receive DSP on 14 October 2008’.

The Tribunal rejected the submission that DSP is a single payment.

In respect of the argument concerning amendments to related legislation, the Tribunal accepted that different language was used but found that the effect of the amendments was such that a person would not be eligible for ESS if they were not entitled to or did not receive payments on 14 October 2009.

Finally, the Tribunal found that s.38 B of the Act related to provisions requiring payment over a continuous period, as distinct from payment at an eligibility date.

Having rejected the submissions made for de Waal, the Tribunal concluded that ESS could not be paid as de Waal was not receiving DSP in respect of 14 October 2008.

Formal decision

The decision of the SSAT was set aside and in place of that decision the Tribunal decided that de Waal was not entitled to an economic strategy payment under s.900 of the Act.

[R.P.]